With the New Year approaching, you may be wondering will the No Surprises Act really go into effect on January 1st (at least the parts that have not already been delayed)? The answer for now is YES. But, with four lawsuits pending in three courts, this could change at a moment’s notice. Here is a short timeline of upcoming deadlines in each case:

Texas Medical Association v. U.S. Department of Health and Human Services

This was the first case filed and is pending in U.S. District Court for the Eastern District of Texas. It is currently the case furthest in the process. On December 10, 2021, Plaintiffs filed a Motion for Summary Judgment seeking an order from the Court vacating the provisions of Part II of the Requirements Related to Surprise Billing (Part II) requiring Independent Dispute Resolution (IDR) entities to employ a rebuttable presumption in favor of the offer closest to the Qualifying Payment Amount (QPA). Plaintiffs assert that the rebuttable presumption is unlawful because (1) the statute cannot reasonably be read to impose such a presumption; and (2) Defendants unlawfully issued Part II without providing a notice and comment period as required by the Administrative Procedures Act (APA). The next deadlines are:

• January 3, 2022: Amicus curiae briefs are due. Amicus curiae is Latin for “friend of the court” and is typically a person or group who is not a party to the lawsuit, but has a strong interest in the matter that files a brief that is intended to influence the court’s decision. To date, four amicus briefs have been filed (Action for Health, Inc., medical associations for 13 states, and various emergency physician groups). Certain members of Congress will be filing an amicus brief in support of Plaintiffs’ position by this deadline.
• January 10, 2022: Defendants’ opposition to Plaintiffs’ Motion for Summary Judgment is due.
• January 18, 2022: Responses to members of Congress’s amicus brief is due.
• January 24, 2022: Plaintiffs’ reply to its Motion for Summary Judgment is due.
• February 2, 2022: Defendants’ reply to Plaintiff’s reply is due.
• February 4, 2022: In person hearing on the Motion for Summary Judgment and related filings will be held.

Association of Air Medical Services v. U.S. Department of Health and Human Services

This was the second case filed and is pending in the U.S. District Court for the District of Columbia. On December 10, 2021, Plaintiff filed a Motion for Summary Judgment arguing the following:

• The rebuttable presumption created by Part II is inconsistent with the statutory text of the No Surprises Act;
• The method of calculating the QPA set forth in Part I impermissibly excludes certain contracts such as single case agreements;
• The method of calculating the QPA set forth in Part I treats air ambulance services furnished by different specialities the same; and
• The method of calculating the QPA uses overbroad geographic regions.

Plaintiff seeks a judgment that would set aside these components of Part I and Part II.

The upcoming deadlines include:

• January 18, 2022: Defendant’s opposition to the Motion for Summary Judgment and any cross-motion is due.
• February 1, 2022: Plaintiff’s reply in support of the Motion and opposition to Defendant’s cross-motion, if any, is due.
• February 11, 2022: Defendant’s reply in support of its cross-motion, if any, is due.

American Medical Association v. U.S. Department of Health and Human Services

This was the third case filed and is pending in the U.S. District Court for the District of Columbia. On December 9, 2021, Plaintiffs filed a Motion for Stay Pending Judicial, or in the Alternative, for Summary Judgment. Plaintiffs seek an order staying enforcement of the provisions of Part II that require the IDR entities to employ the rebuttable presumption pending judicial review (or, alternatively, judgment in their favor that the requirement is unlawful). The timeline for additional filings is as follows:

• January 24, 2022: Defendants’ opposition to the Motion and their cross-motions are due.
• February 7, 2022: Plaintiffs’ reply to the Motion and opposition to any cross-motions are due.
• February 18, 2022: Defendants’ replies to their cross-motions are due.

The briefing schedule appears to accommodate a request by Plaintiffs that the Court make a decision as to the Motion to Stay by March 1, 2022 — the earliest date that an IDR process will commence under the No Surprises Act. This case is the most likely (in its current posture) to lead to a stay of the enforcement of Part II related to the IDR process.

American Society of Anesthesiologists v. U.S. Department of Health and Human Services

This is the most recent case filed. Pending in the U.S. District Court for the Northern District of Illinois, Plaintiffs set forth two claims for relief in this case: (1) that creation of the rebuttable presumption exceeds Defendants’ statutory authority; and (2) that the APA’s notice and comment rulemaking requirements were violated. As this case was just filed, there are no upcoming dates or deadlines.

Three of the four cases are set up for a decision before March 1, 2022. Will any of the parties file for immediate injunctive relief delaying enforcement sooner than that?  Stay tuned…